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England and Wales High Court (Family Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Family Division) Decisions >> Wakefield Metropolitan District Council v R & Ors  EWHC 3581 (Fam) (20 December 2019)
Cite as:  EWHC 3581 (Fam)
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Strand, London, WC2A 2LL
B e f o r e :
| WAKEFIELD METROPOLITAN DISTRICT COUNCIL
|- and –
(Through the Children's Guardian)
3rd -6th Respondents
Sugan Praisoody (instructed by Eva Cofie of EH Dawson Solicitors) for the 1st Respondent
David Orbaum (instructed by Rebecca Shenton of King Street Solicitors) for the 2nd Respondent
Iain Hutchinson (instructed by Jennifer Heckingbottom of Switalskis Solicitors) for the 3rd – 6th Respondents
Hearing dates: 2,3,4,5,6,9,10 December 2019
Crown Copyright ©
Mrs Justice Lieven DBE :
a) Acute subdural haemorrhages at multiple locations overlying her brain, between the two halves of her brain, beneath her brain and in her posterior fossa.
b) Acute traumatic effusions overlying her brain.
c) Acute subarachnoid haemorrhage overlying her brain
d) Hypoxic ischaemic change within the brain substance
I will refer to these below as "the injuries".
Child 4's medical history
The Mother's evidence
"I was woken by a different noise, she was shaking, staring with her eyes, eyes directing to the right, left side body shaking. I woke 'the Father'- he took her from cot and cuddled her – she stopped – she wouldn't eat. We fell back to sleep together" [This is at 2am]
"Sunday woke up started behaving strange way, but more severely way" [This is at 6am]
"Features of AHT are extra-axial bleeding, subdural collections, brain injury, retinal haemorrhages in 70-80%, external head or scalp injuries may be present, skull fracture maybe present, but the latter two not if shaken without impact. Both the CT scan and MRI scan of the head and brain both confirm multiple areas of extra axial bleeding and collections, and brain injury. There is no skull fracture. There are no retinal haemorrhages. The child remains encephalopathic which is also a feature of AHT
a. Summary of the MRI: In the absence of significant witnessed high velocity trauma, the combination of multicompartmental subdural haematomas, convexity subarachnoid haemorrhage and hypoxic ischaemic injury is strongly suggestive of abusive head trauma. Correlation with ophthalmological examination and a skeletal survey is required."
a. Firstly, that it was not a head injury and the doctors are mistaken. However, he said there was nothing in the evidence that would suggest this was the case, unless there was some disease process currently unknown to the medical profession. He was absolutely clear that every relevant test had been carried out, and that the relevant clinical protocol had been fully followed.
b. Secondly, that Child 4 was vulnerable such that she would suffer such an injury from handling that would not have had the same impact on a normal baby of her age. However, investigation has not shown any of the known vulnerabilities that infants can suffer from and those investigations have been thorough and complete.
c. Thirdly, that from cognitive facts, alcohol or drug ingestion the parents have failed to appreciate or remember the causative event. He noted that this is a matter for the Court and not the medical expert.
d. Fourthly that the parents have chosen not to report the event.
"I think that the time has come to say, once and for all, that there is only one civil standard of proof and that is proof that the fact in issue more probably occurred than not… There is only one rule of law, namely that he occurrence of the fact in issue must be proved to have been more probable than not. Common sense, not law, requires that in deciding this question, regard should be had, to whatever extent appropriate, to inherent probabilities.
"If a legal rule requires the facts to be proved (a 'fact in issue') a judge must decide if it happened. There is no room for a finding that it might have happened. The law operates a binary system in which the only values are 0 and 1. The fact either happened or it did not. If a Tribunal is left in doubt, the doubt is resolved by a rule that one party or the other carries the burden of proof. If the party who bears the burden of proof fails to discharge it, the value of nought is returned and the fact is treated as not having happened. If it does discharge it, the value of one is returned and the fact is treated as having happened."
"the standard of proof in finding the facts necessary to establish the threshold under section 31(2) or the welfare consideration in section 1 of the 1989 Act is the simple balance of probabilities, neither more nor less. Neither the seriousness of the allegation nor the seriousness of the consequences should make any difference to the standard of proof to be applied in determining the facts. The inherent probabilities are simply something to be taken into account, where relevant, in deciding where the truth lies..."
"The balance of probability standard means that a court is satisfied an event occurred if the court considers that, on the evidence, the occurrence of the event was more likely than not. When assessing the probabilities, the court will have in mind as a factor, to whatever extent is appropriate in the particular case that the more serious the allegation the less likely it is that the event occurred and, hence, the stronger should be the evidence before the court concludes that the allegation is established on the balance of probability....... Built into the preponderance of probability standard is a generous degree of flexibility in respect of the seriousness of the allegation. Although the result is much the same, this does not mean that where a serious allegation is in issue the standard of proof required is higher. It means only that the inherent probability or improbability of an event is itself a matter to be taken into account when weighing the probabilities and deciding whether, on balance, an event occurred. The more improbable the event, the stronger must be the evidence that it did occur before, on the balance of probability, its occurrence will be established."
"First, that the legal concept of the proof on the balance of probabilities 'must be applied with common sense' as Lord Brandon said in The Popi M, Rhesa Shipping Co SA v Edmunds, Rhesa Shipping Co Sa v Fenton Insurance Co Ltd  1WLR at 956.
Secondly, that the court can have regard to the inherent probabilities:
Thirdly, that the fact, if fact it be, that the respondents (here, the parents) fail to prove on a balance of probabilities an affirmative case that they have chosen to set up by way of defence, does not of itself establish the local authority's case. As to the width of the range of facts which may be relevant when the court is considering the threshold conditions: "The range of facts which may properly be taken into account is infinite. Facts include the history of members of the family, the state of relationships within a family, proposed changes within the membership of a family, parental attitudes, and omissions which might not reasonably have been expected, just as much as actual physical assaults. They include threats, and abnormal behaviour by a child, and unsatisfactory parental responses to complaints or allegations. And facts, which are minor or even trivial if considered in isolation, when taken together may suffice to satisfy the court of the likelihood of future harm. The court will attach to all the relevant facts the appropriate weight when coming to an overall conclusion on the crucial issue"
(per Lord Nicholls in Re H).
"The court should first consider whether there is a 'list' of people who had the opportunity to cause the injury. It should then consider whether it can identify the actual perpetrator on the balance of probability and should seek, but not strain, to do so: Re D (Children)  EWCA Civ 472 at . Only if it cannot identify the perpetrator to the civil standard of proof should it go on to ask in respect of those on the list: "Is there a likelihood or real possibility that A or B or C was the perpetrator or a perpetrator of the inflicted injuries?" Only if there is should A or B or C be placed into the 'pool'."
"The expert advises but the judge decides. The judge decides on the evidence. If there is nothing before the court, no facts or no circumstances shown to the court which throw doubt on the expert evidence, then, if that is all with which the court is left, the court must accept it. There is, however, no rule that the judge suspends judicial belief simply because the evidence is given by an expert."
"An expert is not in any special position and there is no presumption of belief in a doctor however distinguished he or she may be. It is, however, necessary for the judge to give reasons for disagreeing with experts' conclusions or recommendations. That, this judge did. A judge cannot substitute his own views for the views of the experts without some evidence to support what he concludes."
23. In the brief summary of the submissions set out above there is a broad measure of agreement as to some of the considerations emphasised by the judgment in R v Cannings that are of direct application in care proceedings. We adopt the following: -
iv) The Court must always be on guard against the over-dogmatic expert, the expert whose reputation or amour propre is at stake, or the expert who has developed a scientific prejudice.
There are limits to the extent of knowledge and no conclusion should be reached without acknowledging the possibility of an unknown cause emerging in the light of medical perception (Moses LJ Paragraph 21 R v Henderson);
The mere exclusion of every known cause, does not prove the deliberate infliction of violence (Paragraph 21 Henderson above);
The temptation to conclude, when the defence cannot identify an alternative cause of non-accidental injury, that the prosecution has proved the case, must be resisted, in family as well as criminal cases (Paragraph 10, Re R, Hedley J);
A conclusion of unknown aetiology in respect of an infant represents neither professional nor forensic failure. It simply recognises that we still have much to learn and it is also recognised that it is dangerous and wrong to infer a non-accidental injury merely from the absence of any other understood mechanism. Maybe it simply represents a general acknowledgement that we are fearfully and wonderfully made (Paragraph 19, Re R Hedley J).
'[…] [I]t is not uncommon for witnesses in these cases to tell lies in the course of the investigation and the hearing. The Court must be careful to bear in mind that the witness may lie for various reasons, such as shame, misplaced loyalty, panic, fear, distress and the fact that the witness has lied about some matters does not mean that he or she has lied about everything: See R v Lucas  QB 720.'
 […] A family court, in common with a criminal court, can rely upon a finding that a witness has lied as evidence in support of a primary positive allegation. The well known authority is the case of R v Lucas (Ruth)  QB 720;  3 WLR 120 in which the Court of Appeal Criminal Division, after stressing that people sometimes tell lies for reasons other than a belief that the lie is necessary to conceal guilt, held that four conditions must be satisfied before a defendant's lie could be seen as supporting the prosecution case as explained in the judgment of the court given by Lord Lane CJ at p 123:
"To be capable of amounting to corroboration the lie told out of court must first of all be deliberate. Secondly it must relate to a material issue. Thirdly the motive for the lie must be a realisation of guilt and a fear of the truth. The jury should in appropriate cases be reminded that people sometimes lie, for example, in an attempt to bolster up a just cause, or out of shame or out of a wish to conceal disgraceful behaviour from their family. Fourthly the statement must be clearly shown to be a lie by evidence other than that of the accomplice who is to be corroborated, that is to say by admission or by evidence from an independent witness."
 The decision in Lucas has been the subject of a number of further decisions of the Court of Appeal Criminal Division over the years, however the core conditions set out by Lord Lane remain authoritative. The approach in R v Lucas is not confined, as it was on the facts of Lucas itself, to a statement made out of court and can apply to a "lie" made in the course of the court proceedings and the approach is not limited solely to evidence concerning accomplices.
 In the Family Court in an appropriate case a judge will not infrequently directly refer to the authority of Lucas in giving a judicial self-direction as to the approach to be taken to an apparent lie. Where the "lie" has a prominent or central relevance to the case such a self-direction is plainly sensible and good practice.
 One highly important aspect of the Lucas decision, and indeed the approach to lies generally in the criminal jurisdiction, needs to be borne fully in mind by family judges. It is this: in the criminal jurisdiction the "lie" is never taken, of itself, as direct proof of guilt. As is plain from the passage quoted from Lord Lane's judgment in Lucas, where the relevant conditions are satisfied the lie is "capable of amounting to a corroboration". In recent times the point has been most clearly made in the Court of Appeal Criminal Division in the case of R v Middleton (Ronald)  Crim LR 251. In my view there should be no distinction between the approach taken by the criminal court on the issue of lies to that adopted in the family court. Judges should therefore take care to ensure that they do not rely upon a conclusion that an individual has lied on a material issue as direct proof of guilt.[…]
 I have taken the opportunity to refer to Lucas in the hope that a reminder of the relevant approach taken in the criminal jurisdiction will be of assistance generally in family cases. […]'
'…where repeated accounts are given the court must think carefully about the significance or otherwise of any reported discrepancies. They may arise for a number of reasons. One possibility is of course that they are lies designed to hide culpability. Another is that they are lies told for other reasons. Further possibilities include faulty recollection or confusion at the time of stress or where the importance of accuracy is not fully appreciated, or there may be inaccuracy or mistake in the record-keeping or recollection of the person hearing and relaying the account. The possible effect of delay and repeated questioning upon memory should also be considered, as should the effect of one person on hearing accounts given by another. As memory fades, a desire to iron out wrinkles may not be unnatural; a process that might inelegantly be described as "story-creep" may occur without any necessary inferences of bad faith.'
"Although the medical evidence is of very great importance, it is not the only evidence in the case. Explanations given by carers and the credibility of those involved with the child concerned are of great significance. All the evidence, both medical and non-medical, has to be considered in assessing whether the pieces of the jigsaw form into a clear convincing picture of what happened…Judges... are guided by many things, including the inherent probabilities, any contemporaneous documentation or records, any circumstantial evidence tending to support one account rather than the other and their overall impression of the characters and motivation of the witnesses."
"... I remind myself that a factual decision must be based on all available materials, i.e. be judged in context and not just upon medical or scientific materials, no matter how cogent they may in isolation seem to be. Just as best interests are not defined only by medical or scientific best interests ... likewise, investigations of fact should have regard to the wide context of social, emotional, ethical and moral factors".
6. When any fact-finding court is faced with the evidence of the parties and little or no corroborating or circumstantial material, it is required to make a decision based on its assessment of whose evidence it is going to place greater weight upon. The evidence either will or will not be sufficient to prove the facts in issue to the appropriate standard.
"I should make reference to those occasions when judges may use a phrase such as 'first consideration' when referring to the weight that is to be given to the relationship between a child and her parents and natural family. In the light of Re B (a child)  UKSC 33, with the repeated use in their Lordships' judgment of phrases such as 'high degree of justification', 'necessary', 'required', 'a very extreme thing', 'a last resort' and 'nothing else will do', it is clear that the importance of a child either living with, or maintaining a relationship with, her parents and natural family has certainly not been reduced."
"Evidence comes in many forms. It can be live, written, direct, hearsay, electronic, photographic, circumstantial, factual, or by way of expert opinion. It can concern major topics and small details, things that are important and things that are trivial".
"In itself, the presence or absence of a particular [risk or protective] factor proves nothing. Children can of course be well cared for in disadvantaged homes and abused in otherwise fortunate ones. As emphasised above, each case turns on its facts. The above analysis may nonetheless provide a helpful framework within which the evidence can be assessed and the facts established."
"a) Acute subdural haemorrhages at multiple locations overlying her brain, between the two halves of her brain, beneath her brain and in her posterior fossa.
b) Acute traumatic effusions overlying her bran.
c) Acute subarachnoid haemorrhage overlying her brain
d) Hypoxic ischaemic change within the brain substance"
He was clear that the nature of the injuries that he saw in the scans were highly unlikely to be caused other than by some form of traumatic event. The scans all showed a consistent picture of such a traumatic injury. There was no evidence of any impact injury to the brain. He deferred to Mr Richards as to whether there was any other possible cause, but he said that he could see no evidence on the material before him, of any other cause.